1. Multiplicity is the charging of a single offense in several counts of a complaint or
information.

2. Aggravated robbery and aggravated battery are multiplicitous when the same act of
violence provides the basis for each conviction.

3. The 1998 legislative amendment to K.S.A. 21-3107 changing the definition of a lesser
crime to one where all of the elements of the lesser crime are identical to some of the
elements of the crime charged, does not alter a multiplicitous analysis where the same act
of force provides the basis for each conviction.

4. Police may legally impound a vehicle if authorized by statute or if there are reasonable
grounds for impoundment.

Appeal from Geary District Court; LARRY E. BENGTSON, judge. Opinion filed June
13, 2003.
Affirmed in part and reversed in part.

KNUDSON, J.: Anthony C. Groves appeals convictions of aggravated robbery and
aggravated battery. Groves contends: (1) The convictions are multiplicitous as the same act of
violence provides the basis for each conviction; (2) the district court erred in failing to give the
jury a multiple counts instruction as recommended in PIK Crim. 3d 68.07; and (3) the district
court erred in denying Grove's pretrial motion to suppress evidence.

We hold that under the facts of this case, Groves' convictions for aggravated robbery and
aggravated battery are multiplicitous. Consequently, we reverse the aggravated battery
conviction and order that charge to be dismissed. We affirm Grove's conviction for aggravated
robbery.

The underlying facts are not in material dispute. Terri Lott was the victim of an
aggravated robbery when a man grabbed her purse and threw her to the ground. At trial, the
issue was whether Groves committed the crime. The jury determined Groves to be the
perpetrator and convicted him of aggravated robbery and aggravated battery.

Groves argues the convictions are multiplicitous because they arise out of the same act of
violence. Notwithstanding Groves' failure to raise this issue before the district court, we conclude
the issue may be considered on appeal. See State v. Taylor, 25 Kan. App. 2d 407,
409-10, 965
P.2d 834, rev. denied 266 Kan. 1115 (1998).

"Multiplicity is the charging of a single offense in several counts of a complaint or
information.
The reason multiplicity must be considered is that it creates the potential for multiple
punishments for a single offense in violation of the Double Jeopardy Clause of the Fifth
Amendment of the United States Constitution and section 10 of the Kansas Constitution Bill of
Rights." State v. Robbins, 272 Kan. 158, 171, 32 P.3d 171 (2001).

There is impressive case precedent supporting Groves' claim of multiplicitous convictions.
In State v. Warren, 252 Kan. 169, 843 P.2d 224 (1992), the Kansas Supreme Court
analyzed
Warren's convictions for aiding and abetting aggravated robbery and aiding and abetting
aggravated battery after Warren suggested to two women that they should commit robbery in
order to obtain drug money and for providing transportation to the women who knocked an
elderly woman down and stole her purse. The court reversed the aiding and abetting aggravated
battery conviction after it determined convictions for aggravated robbery and aggravated battery
were multiplicitous when the same act of violence provided the basis for each conviction. 252
Kan. at 182.

Warren was followed by State v. Vontress, 266 Kan. 248, 970
P.2d 42 (1998), in which
the Kansas Supreme Court again analyzed a multiplicity argument relating to convictions for
aggravated robbery and aggravated battery. The court determined a single act of violence, the
shooting of one of the victims, was used to prove both crimes and resulted in a multiplicitous
conviction:

"The State fails to acknowledge that the sole allegation of bodily harm in its
complaint
and the judge's instructions to the jury was Spires' gunshot wounds. To prove the bodily harm
element of aggravated robbery, the State was required to prove one fact: Vontress shot
Spires--the same fact necessary for proof of the great bodily harm element of aggravated battery.
Under
the information and instructions in this case, the aggravated battery count required proof of the
fact which was also required to prove the aggravated robbery charge. Therefore, the convictions
are multiplicitous, and punishment for both crimes is a violation of double jeopardy. The
aggravated battery conviction is reversed." 266 Kan. at 257.

We acknowledge since Warren and Vontress were decided,
K.S.A. 21-3107 has been
amended to remove former K.S.A. 21-3107(2)(d). See L. 1998, ch. 185, § 1. The
significance of
that amendment was considered in State v. Garcia, 272 Kan. 140, 32 P.3d 188
(2001). In
Garcia, the Supreme Court followed its decisions in Warren and
Vontress when it held the
appellant's conviction for aggravated kidnapping was multiplicitous with either the rape or
aggravated criminal sodomy convictions because "the bodily harm needed to prove aggravated
kidnapping was the same bodily harm supplied by one of the rape convictions or the aggravated
criminal sodomy conviction." 272 Kan. at 147. Although the court followed Warren
and
Vontress, it pointed out a change in the multiplicity analysis as a result of the revision
of K.S.A.
21-3107:

"It should be noted that in 1998, the Kansas Legislature amended K.S.A. 21-3107
to
essentially remove the former K.S.A. 21-3107(2)(d). See L. 1998, ch. 185, § 1. In its
place, the
legislature inserted a new version, K.S.A. 2000 Supp. 21-3107(2)(b), which provides that an
included crime is one where 'all of the elements of the lesser crime are identical to some of the
elements of the crime charged.' This will necessarily change the multiplicity analysis for cases
which occur under the new statute and signifies a return to the identity of the elements standard
that this court used prior to the enactment of K.S.A. 21-3107. Such a change, while allowing
convictions for crimes which would have been multiplicitous under the statute at issue here, does
not violate constitutional prohibitions against double jeopardy as it does not subject defendants to
punishments greater than those intended by the legislature. [Citation omitted.]" 272 Kan. at
147.

We do not believe the dicta in Garcia signifies a retreat by the Kansas
Supreme Court
from its holdings in Warren and Vontress. Both of those cases were
analyzed under a single act
of violence paradigm unaffected by a lesser included analysis under K.S.A. 21-3107, before or
after the 1998 amendment. We conclude the dicta in Garcia is not persuasive
authority the
Supreme Court will retreat from its holdings in Warren and Vontress.
Accordingly, we hold
Groves' conviction for aggravated battery must be set aside and the charge dismissed.

Groves' final argument is that the district court erred in denying his motion to suppress the
evidence obtained after his car was seized. His argument is not persuasive. The "[p]olice may
legally impound a vehicle if authorized by statute or if there are reasonable grounds for
impoundment." State v. Canaan, 265 Kan. 835, 843, 964 P.2d 681 (1998). Here,
Groves' car
was used as the getaway car for a purse snatching. His car had evidentiary significance regarding
identification and a potential location for the purse taken from Terri Lott. Reasonable grounds
for impoundment certainly encompass a car that has been used in the commission of a crime and
may contain fruits or evidence of the crime. See State v. Teeter, 249 Kan. 548, 552,
819 P.2d
651 (1991).

Affirmed in part and reversed in part; the aggravated battery conviction is set aside.